Rep. Cathy McMorris Rodgers on Disability Issues

Rep. Cathy McMorris Rodgers has this piece up on the National Review's website today. It begins:

Until now, policy ideas designed to help Americans with disabilities have been viewed as the exclusive province of liberals. Despite the fact that important measures such as the Americans with Disabilities Act passed only with crucial Republican support, the public — and the community of disability advocates — normally identifies this issue with the Democratic party. It is even the case that many Republicans think of disability policy as being the province of liberals, because they identify the issue with bureaucratic regulation and government handouts.

At the same time, it is becoming increasingly apparent that — although we’ve come a long way — our existing policies are antiquated, costly to society, and inadequate to meet the changing needs of Americans with disabilities and their families. Big expensive government is not the answer for people without disabilities, nor is it for those with. Reducing the entanglement of Big Government in order to benefit people with disabilities should be a top priority for the Republican party.

Friday, October 28, 2011

Richard Ford's False Choice

Richard Ford is one of the most interesting and important scholars of civil rights and antidiscrimination law these days. Though I don't always agree with him, his work is required reading, and I have learned much from it. Ford's oped today in the Times, which promotes his new book, is smart and provocative as always, and I commend it to both of my readers.

That said, I have some qualms about Ford's argument, which I can highlight by talking about the one place in the oped where he discusses disability issues:

Similarly, civil rights intended to help profoundly disabled students don’t work well in cases involving mild learning and emotional disabilities that even experts can’t distinguish from garden-variety eccentricity or poor concentration. As a result poor and minority children tend to be tracked into dead-end remedial or special education classes, while children with similar conditions but wealthier and savvier parents receive one-on-one instruction, immunity from discipline and sometimes even private school paid for at public expense.

To the extent that Ford is saying that group-based civil rights laws are insufficient to solve these problems, I am in substantial agreement. Two of the major claims of my book about the disability rights movement are that (1) civil rights laws are insufficient to achieve disability rights goals, and (2) people with disabilities benefit when disability rights are framed in universal terms that do not draw lines between people with and without disabilities. (See also this article of mine, which emphasizes the limits of antidiscrimination law as a tool of achieving workplace equality.) And to the extent that Ford is criticizing particular aspects of the scheme Congress and the courts have developed for enforcing the rights of schoolchildren with disabilities, I have sympathy as well. My chapter of this book raised equity and other concerns with the IDEA's private-school reimbursement rule, for example, though I think the matter is more complicated than one could fully acknowledge in an oped.

But the tone and much of the content of Ford's oped suggests a stronger thesis -- that civil rights law is not just limited in what it can achieve but is actually counterproductive, in part because there is a fundamental tension in trying to achieve group goals through individual rights. I get the argument but don't find a claim of perverse effects here especially persuasive. Ford is clearly right that many "poor and minority children tend to be tracked into dead-end remedial or special education classes." But the relevant question is whether the civil rights laws have helped alleviate this problem, have helped exacerbate this problem, or have been irrelevant to it. Based on my understanding of the empirical evidence, and my observations about how the world works, I find any claim that the civil rights laws have made these matters worse simply implausible; to the contrary, I think the most plausible story is that the civil rights laws have made these matters better and continue to achieve important gains for many people who would otherwise be disadvantaged.

The problem of poor and minority children being tracked and otherwise disadvantaged, while "richer and savvier parents" obtain special benefits for their children, really has nothing to do with the civil rights laws. Rather, it's a consequence of a number of broader factors: the lingering effects of old patterns of segregation; the fact that richer parents have, as a practical matter, a choice of what schools their kids attend (because they can move to another locality or pay for private school), while poorer parents, as a practical matter, don't; and the highly bureaucratic and non-responsive organization of many school districts, which means that parents with more time, money, and education will be remarkably more successful in advocating for their children than those with less. Moving away from civil rights laws won't change these facts, and they will create equity problems with non-civil-rights-based school reforms as well.

In the end, I think Ford presents a false choice. We can recognize the limits of civil rights law, and the need to adopt interventions that are more structural and universalist, without slighting both the historical and continuing importance of civil rights law.

Thursday, October 27, 2011

Travis on Impairment as Protected Status

New on SSRN: Michelle A. Travis, Impairment as Protected Status: A New Universality for Disability Rights, Georgia L. Rev. (forthcoming 2012). The abstract:

This Article analyzes the fundamental change to federal civil rights law that Congress accomplished through the ADA Amendments Act of 2008 (the "ADAAA"). Congress enacted the ADAAA in response to a series of United States Supreme Court opinions that had narrowly interpreted the definition of disability in the Americans with Disabilities Act of 1990. Although many commentators have recognized the ADAAA's intent to restore the class of individuals with disabilities to the breadth that Congress originally intended, this Article argues that the ADAAA accomplished something more significant: it extricated disability from the broader concept of impairment. As a result, the ADAAA has placed "impairment" alongside race, religion, national origin, sex, age, and disability as a legally protected status under federal antidiscrimination law. By implicitly elevating impairment to protected class status, the ADAAA offers a profound yet still unrealized opportunity for reframing the disability rights debate around a new form of universality that could meaningfully advance the disability rights movement.

The ADAAA's new form of universality has the potential to provide a cohesive alternative to the two existing theories that often divide the disability rights community regarding the most effective form of civil rights legislation. Advocates on one side contend that disability should be recognized as a subordinated minority status, while advocates on the other side argue that disability is better understood as a universal continuum. This Article argues that understanding the ADAAA as having elevated impairment to protected class status alongside disability - rather than as having merely expanded the definition of disability - could reveal the statute as having combined the most compelling elements of both the minority status viewpoint and the continuum approach.

Philip K. Howard Opposes Accessible Taxis

See this op-ed from the noted attorney and author of such works as The Death of Common Sense. It begins:

A recent lawsuit against New York City argues that, under the broad mandate for "equal access" under the 1991 Americans With Disabilities Act, all taxis must be wheelchair-accessible. The relief demanded would require, over the next five years, that all 13,000 New York City medallion cabs be replaced by cabs that cost about $15,000 more - basically to have their frames cut and then stretched to accommodate a ramp and room inside for a person in a wheelchair. The other alternative is forcing all medallion owners to buy new, accessible cabs that are even more expensive.

The financial implications of the case are dramatic. Making all taxis wheelchair accessible is likely to add almost $200 million to the cost of new taxis, and then again when they wear out in five years.

Feds Side with Sober Living Homes in a City's Bid to Limit New Facilities

The U.S. Justice Department has thrown a possible kink in Los Angeles' attempt to regulate group homes in single-family neighborhoods, entering into a lawsuit challenging a similar law enacted by Newport Beach.

The department's Civil Rights Division earlier this month filed a friend-of-the-court brief on behalf of three sober living home operators who allege that the Orange County city's law discriminates against people with disabilities. Alcoholics and drug addicts are considered disabled in the eyes of federal law.

Wednesday, October 26, 2011

NYT Review of Lives Worth Living

Enyart Wins Summary Judgment Against National Council on Bar Examiners

Berkeley, California (October 26, 2011): On Monday, October 24, the Honorable Judge Charles R. Breyer ended a two-year legal battle between a blind law school graduate and a national testing corporation over the graduate’s right to use a computer equipped with assistive technology to take the California Bar Exam. Granting Stephanie Enyart’s motion for summary judgment, Judge Breyer found that Ms. Enyart is entitled to take the bar exam on a computer equipped with text-to-speech screen reading and visual screen magnification software, as the method that will best ensure that she is tested on her aptitude rather than her disability.Stephanie Enyart, who graduated from UCLA School of Law in 2009 and first sought to take the bar exam that same year, was forced into court by the refusal of the National Conference of Bar Examiners (NCBE) to allow her to take the bar exam using her primary reading method, a computer equipped with screen reading and screen magnifying software. Ms. Enyart, who became blind in her early adulthood as a result of macular degeneration, has relied on screen reading and screen magnifying technology to read since college, through law school, and in her professional career.Although Ms. Enyart won a preliminary injunction in early 2010, ordering NCBE to provide her requested accommodations, the case has remained in court for almost two years, as NCBE unsuccessfully challenged the district court’s preliminary injunction order first to theCourt of Appeals for the Ninth Circuit, and then to the United States Supreme Court. NCBE argued that it fulfilled its legal obligations to Ms. Enyart by offering accommodations such as Braille or a human reader—notwithstanding evidence that these alternatives do not work well for Ms. Enyart.The courts resoundingly rejected that argument, holding that licensing examinations must be administered to exam takers with sensory impairments in a manner that “best ensures” that they are tested on what the examination purports to measure, rather than on the exam takers’ impairments.Dr. Marc Maurer, President of the National Federation of the Blind, said: “Although blind people have practiced law successfully throughout history, we still face unreasonable and unwarranted barriers to entering and achieving success in the profession. Judge Breyer’s decision is a tremendous step forward in granting blind Americans seeking to enter the practice of law full and equal access to the process of acquiring their credentials. We applaud this common-sense ruling and expect full compliance going forward from the National Conference of Bar Examiners.”Anna Levine of Disability Rights Advocates, an attorney representing the plaintiff, said, “Judge Breyer’s decision vindicates Stephanie Enyart’s request to take the bar exam on a computer, so that she can be tested on what other examinees are tested on, rather than on how well she uses an unfamiliar reading method. We only wish that NCBE had not fought this simple, justified request so aggressively over the past two years.” The suit was filed on November 3, 2009, and charged that the NCBE violated the Americans with Disabilities Act (ADA) and California’s Unruh Civil Rights Act by denying accommodations on the Multistate Bar Examination and the Multistate Professional Responsibility Examination, two components of the California Bar Exam controlled by NCBE. The State Bar granted Ms. Enyart’s request to use a computer on the essay portions of the bar exam, but was unable to grant her request on the portions controlled by NCBE. Ms. Enyart was represented with the support of the National Federation of the Blind (NFB) by Brown, Goldstein & Levy, LLP, in Baltimore, Maryland, and the LaBarre Law Offices, P.C., in Denver, Colorado. The plaintiff was further represented by Disability Rights Advocates (DRA), a national nonprofit law center that specializes in civil rights cases on behalf of persons with disabilities, with offices in Berkeley, California, and New York City.

Planning Commission Vote Ties on Psychiatric Clinic

The city Planning Commission was equally divided and could not reach a decision Tuesday night on whether the Psycamore psychiatric clinic should be allowed near a residential area.

* * *

Speaking for the clinic, attorney Billy Guice said the issue is not zoning, but rather discrimination against the mentally ill.

* * *

He said the city could be in violation of civil rights laws, the Americans With Disabilities Act and the Rehabilitation Act if the clinic is not allowed to open in the highway-commercial zone near Washington Avenue and treat the mentally ill.

City Needs Up to $17M to Comply with ADA

See this article by that title from the Arizona Daily Star. It begins:

The city of Tucson may have to find an estimated $17 million to bring many of its facilities into compliance with the Americans with Disabilities Act.

Under a 2005 settlement agreement with the U.S. Justice Department, the city spent the past two years completing a self-audit of 150 of its facilities to identify any shortcomings under the law, passed in 1992.

The city found more than 2,800 problems, with the bulk centered in parks facilities, said Liana Perez, director of the city's equal opportunity office.

Tuesday, October 25, 2011

NYT on the CLASS Act's Demise

Monday, October 24, 2011

Today's Installments on the NYC Taxi Case

The New York Post today opines that the recent DOJ brief in the New York City taxi case is a big waste of time. Over the weekend, the New York Daily News opined that Mayor Bloomberg is the one who is all wet here. Today's Disability Scoop has more on the mayor's comments.

Good AP Article on the Demise of CLASS

Friday, October 21, 2011

Colker on the Learning Disability Mess

On SSRN: Ruth Colker has posted her paper, The Learning Disability Mess. The abstract:

This article explores the widespread inconsistency among the fifty states in defining "learning disability" under the Individuals with Disabilities Education Act. The article also traces the development of this term historically. The author recommends that educational institutions give less weight to the importance of this classification and, instead, develop educational policies that would not disadvantage students with learning disabilities.

Vermont State Hospital Will Not Reopen Under Governor's Plan

Vermont has no plans to send mental health patients back to the state hospital in Waterbury, which was closed by flooding from Tropical Storm Irene, Gov. Peter Shumlin said. Construction on a new facility likely is years away.

The roughly 50 patients housed there have been sent to other facilities across the state. Shumlin laid out a plan Thursday that he said would lead the state through a “three- to five-year transition,” likely ending with a new facility to house the most acutely mentally ill.

“Building a replacement facility is years away at best, and we need to put services in place now to ensure all Vermonters have access to the care they need,” Shumlin said.

Fascinating FOIA Case (Really!) From the D.C. Court of Appeals

Yesterday, the District of Columbia Court of Appeals (the highest local court, not the D.C. Circuit) issued what to me is a very fascinating opinion in Padou v. District of Columbia. The plaintiff, who edits a community newspaper serving the Brookland section of D.C., sued under the local freedom-of-information law to obtain various information about privately-operated group homes serving people with psychiatric and/or developmental disabilities in Ward 5 (which encompasses Brookland) of the District. In particular, she asked the District to provide her with "the number of such facilities, their addresses and contact information, a description of the services provided, and their capacity." The District, citing the privacy exemption from the local FOIA, refused to provide the addresses of the facilities, and the plaintiff sued.

The D.C. Court of Appeals upheld the refusal to provide information about group homes for people with mental illness, but it remanded to the trial court for further proceedings regarding information about group homes for people with developmental disabilities. As to group homes for people with mental illness, the court explained:

The substantial privacy interest of the mentally ill, who reside in Ward 5 MHCRFs [Mental Health-Related Community Residential Facilities], in protecting themselves from the continuing stigma of mental illness in our society outweighs the public interest, championed here by Ms. Padou, to know “what the government is up to” in those MHCRFs. Disclosure of the addresses could result in harassment and ridicule, or “unwanted intrusions” of MHCRF residents by those who are not sensitive to, nor understanding of, mental illness, and hence, disclosure of the addresses “would interfere with the [residents'] reasonable expectations of undisturbed enjoyment in the solitude and seclusion of their own homes” as the non-mentally ill residents attempt to find out what is happening inside and outside the premises.

As to group homes for people with developmental disabilities, the court of appeals remanded to the trial court largely on factual grounds. But it did explain:

At the same time, it is not clear to us that the intellectually disabled bear the same stigma as the mentally ill, especially in light of society's increasing understanding that not all intellectual disabilities interfere with the ability to function in the larger society. We think that the better course is to remand the DDS matter to the trial court so that it may consider whether DDS has sustained its statutory burden to defend the withholding of street addresses and contact information in its May 1, 2009, disclosure of residential placements in Ward 5.

The case interests me for lots of reasons. One, obviously, is the distinction the court draws between the stigma attendant to a psychiatric disability (which seems to the court clearly to exist) and that attendant to developmental disabilities (which, according to the court, may not exist, at least to the same extent). Stigma's a concept with a lot of ideas packed into it, and it seems to me those ideas cut in complex ways here. One idea of stigma is that it is a characteristic that leads to aversion. Both psychiatric and developmental disabilities have, historically and now, triggered aversive prejudice. My sense is that people with mental illness, when their disability is not hidden, face more aversive prejudice today than do people with developmental disabilities, but that both groups do continue to experience that sort of prejudice. Goffman, in his classic work on stigma, talks about stigma as a characteristic that defines a person in the eyes of others -- and defines them as "not quite human." Again, I think it's clear that both people with psychiatric disabilities and people with developmental disabilities experience that kind of stigma, though here I think that the problem may be worse for people with developmental disabilities. In my experience, it is easier to get people to think of a person with mental illness as a "normal" person who has a condition from which s/he'll recover, a person who has skills and agency, than it often is to get people to think of a person with a developmental disability as having skills and agency. Again, though, I think this is a problem for both groups; I have heard judges say, as if it were obvious, that any person with mental illness should have a guardian, for example.

There is a different stigma point that interests me, as well. From a disability rights perspective, hiding one's identity as a response to feared stigma is totally understandable and may well be the best course for an individual all things considered, but it is deeply problematic. It is problematic for the individual, who in Goffman's terms is "discreditable," and who will experience a psychological cost in trying to keep an important aspect of his or her life secret. It is also problematic for people with disabilities generally, because it is integration of people with disabilities into society -- with the disability identity known -- that best promises to break down stigma and stereotypes. Here, of course, it was the District of Columbia government, and not the individuals with disabilities themselves, who asserted the privacy claim. While that claim may well be right legally, it raises complicated issues for people with disabilities.

Finally, the case is interesting because it shows why advocates for community integration have moved away from the group home model towards an emphasis on supported living in apartments scattered across developments that mainly house people without disabilities. Group homes provide a target for stigma, and they can thus end up actually segregating their residents from the very communities in which they are placed (segregating them less than confinement in a nursing home or large institution, to be sure, but segregating them nonetheless).

Sorry to go on about a FOIA case. But I think it does highlight a number of interesting points about psychiatric and developmental disabilities and community integration.

Rep. Duncan Hunter on the ADA Notification Act

When it comes to job-creation barriers, there's a litany of tax and regulatory impediments contributing to high unemployment and preventing employers from putting people back to work. Often missing from the discussion on what's holding back job creators is the threat many businesses face under the Americans With Disabilities Act.

Twenty years ago, the ADA was enacted to improve access to places of public accommodation for disabled Americans. It was never intended to be a vehicle for personal profit, which is now the case for a number of predatory attorneys and individuals that are cleverly leveraging existing law against honest and unsuspecting small-business owners.

In California, one lawyer alone has filed more than 200 lawsuits against small businesses under questionable or misleading pretenses. These lawsuits come at a price. Each legal pursuit costs businesses time, money and resources that, aside from helping to make payrolls and pay other expenses, could otherwise go toward meeting compliance standards once a complaint is filed and determined valid.

Pasachoff on Special Education and Private Enforcement

This Article examines the appropriate balance between public and private enforcement of statutes seeking to distribute resources or social services to a socioeconomically diverse set of beneficiaries through a case study of the federal special education law, the Individuals with Disabilities Education Act (IDEA). It focuses particularly on the extent to which the Act's enforcement regime sufficiently enforces the law for the poor. The Article responds to the frequent contention that private enforcement of statutory regimes is necessary to compensate for the shortcomings of public enforcement. Public enforcement, the story goes, is inefficient and relies on underfunded, captured, or impotent government agencies, while private parties are appropriately incentivized to act as private attorneys general. This Article challenges that argument as not applicable to all circumstances. Instead, it uses the IDEA to identify certain features of institutional design that can make heavy reliance on private enforcement lead to predictable disparities in enforcement in favor of wealthier beneficiaries as opposed to poor beneficiaries, in contravention of the stated goals of some statutes. These features of institutional design include universal rather than means-tested service provision distributed by relying on nontransparent, nonprecedential, private bargaining over a highly individualized system where the contours of the right are determined through significant amounts of agency discretion. Where these features are present, the Article argues, greater attention to public enforcement, as opposed to private enforcement, is likely to be necessary if the goal is to avoid enforcement disparities in favor of wealthier beneficiaries. Alternatively, modifying these features may reduce enforcement disparities and make public enforcement less necessary.

Last week, in Dykes v. Dudek, 2011 WL 4904407 (N.D. Fla., Oct. 14, 2011), the court denied the plaintiffs' motion for class certification in a challenge, under the Supreme Court's decision in Olmstead v. L.C., to Florida's waiting lists for obtaining community-based developmental disability services. The proposed class included all individuals in Florida who meet an ICF/DD level of care and are on a a waiting list to receive DD waiver services. It embraced two subclasses: (1) persons currently receiving services in institutions; and (2) persons currently residing in the community without receiving services.

The state had challenged the standing of the second subclass on the ground that, because they are not institutionalized, members of that subclass did not have a sufficient injury in fact. The court rejected the standing challenge. The court concluded that plaintiffs were alleging violations of federal statutes (including the ADA and the Medicaid Act) that give them the right to be free from state conduct that places them at undue risk of institutionalization, and that the denial of such statutory rights (which plaintiffs would have to prove at trial) was sufficient injury in fact.

But the court denied the motion for class certification on the ground that the proposed class failed to satisfy the commonality requirement of Fed. R. Civ. P. 23(a). The court concluded that the two subclasses were too distinct in law and fact, and had interests that were too much in conflict, to be certified as part of the same class. It explained that the currently institutionalized plaintiffs had a clear right under Olmstead to freedom from unnecessary institutionalization, but that, in its view, whether people currently residing in the community had an Olmstead right to receive community services was "unclear." (This seems extremely weak to me; since the Tenth Circuit's leading decision in Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003), courts have uniformly recognized that the failure to provide services to people with disabilities currently living in the community is actionable if it places them at sufficient risk of institutionalization. Indeed, this very theory was the basis for the district court's standing holding here.)

The court also concluded that, under the challenged Florida practice, people in institutions might, simply because they are institutionalized, really never get priority on the wait list, while whether people currently in the community would get priority would depend on their individual situations; and that the injuries of people currently in institutions and people at risk of institutions are different. And, the court believed, the different subclasses had different interests, because they were both competing for limited waiver resources.

Interesting M.D. Tenn. Case on ADAAA

Earlier this week, a federal magistrate judge issued his report and recommendation regarding the defendant's summary judgment motion in Thomas v. Werthan Packaging, Inc., 2011 WL 4915776 (M.D. Tenn., Oct. 17, 2011). The case is a standard-issue ADA employment case. Thomas operated various paper cutting and labeling machines for a company that makes large paper bags to hold pet food. Thomas injured his hand at work and developed back problems, both of which made him unable to lift more than 20 pounds. Werthan terminated him.

Werthan moved for summary judgment on the grounds that (a) Thomas did not have a disability; and (b) lifting more than 20 pounds was an essential function of the job. Because Thomas was terminated in 2009, the court applied the ADA Amendments Act to the first question. The magistrate judge noted that a number of cases applying the pre-ADAAA statute had held that a 20-pound lifting restriction did not substantially limit a major life activity and thus did not constitute a disability. But, he explained, the ADAAA had explicitly defined major life activities to include lifting; given the new statute's instruction to apply a broad definition of disability, he concluded that there remained material facts regarding whether Thomas was substantially limited.

Nonetheless, the magistrate judge recommended granting the summary judgment motion on the "essential functions" question. Although he refused "to give undue weight to defendant Werthan's assessment" of what constituted an essential function, the magistrate judge concluded that all of the evidence demonstrated that lifting more than 20 pounds was an essential function of Thomas's job. He looked to the employer's written job description; testimony from Thomas's supervisor that his job required Thomas to team-lift, with a coworker, a 90-pound object approximately seven times per eight-hour shift; and testimony from an HR officer at Werthan that none of Thomas's coworkers required others to do their lifting for them.

The essential functions holding here is arguable, but the case nonetheless shows how important are the changes made by the ADAAA. Under pre-ADAAA law, a court would likely not even have considered whether Thomas could perform the essential functions of his job -- i.e., whether the employer discriminated. Here, the court at least focused on that important question, rather than pretermitting that question by declaring that Thomas could not even invoke the protection of the law.

Grant T. Collins & Penelope J. Phillips, Overview of Reasonable Accommodation and the Shifting Emphasis from Who is Disabled to Who Can Work, 34 Hamline L. Rev. 469 (2011);

Amy J. Goetz, Tammy L. Pust & Atlee Reilly, The Devolution of the Rowley Standard in the Eighth Circuit: Protecting the Right to a Free and Appropriate Public Education by Advocating for Standards-Based IEPs, 34 Hamline L. Rev. 503 (2011);

Daniel Stewart, How Do the States Regulate Restraint and Seclusion in Public Schools? A Survey of the Strengths and Weaknesses in State Laws, 34 Hamline L. Rev. 531 (2011);

Tuesday, October 18, 2011

Health Beat Eulogizes the CLASS Act

The Century Foundation's Health Beat has this important post on the CLASS Act. Some excerpts:

Where do we go from here? Long-term care remains a pressing problem without an imminent solution. As our population ages, more adults with chronic, multiple medical conditions will require care—many for years. We know it costs an average of $75,000 a year (with great variability across the nation) to house a frail elderly or disabled person in a nursing home. Yet as Gleckman points out in a newForbes column , “half of Americans have less than $55,000 in financial assets, barely enough to pay for 9 months in a nursing home, or 2 years of 4 hours of help each day from a home health aide. And hardly anyone buys private long-term care insurance—only 7 million Americans own policies.”

Again, it all comes back to Medicaid: Elderly people who have savings pay out of pocket for private home care and nursing homes until they have nothing left and then qualify for public assistance. Some of them never receive the services they need and suffer from neglect and deprivation. Using a new scorecard developed by the AARP and the Commonwealth Fund, we have a fairly good idea of how individual states are doing in terms of meeting the needs of the growing legions of residents needing long-term care. By all accounts, even the best states are barely meeting demand, and could benefit from improvement and better coordination between the various agencies, providers and programs that serve the elderly and disabled.

* * *

The problem of paying for long-term care has not gone away. Anyone cheering the demise of CLASS and claiming a victory for the anti-reform (and anti-Obama) side is deluded; this issue has no “side” and we’ve merely punted it further down the road. We are all going to get old. The vast majority of us will require long-term care services in the future and most will require government or other outside help to pay for it. The silence from the right is deafening.

Gurian on the CLASS Act and the Perils of Incrementalism

Over at his interesting Remapping Debate site, civil rights lawyer Craig Gurian has posted a piece entitled Perils of Incrementalism on the recent CLASS Act maneuverings. He argues that the case of the CLASS Act "raises important questions about the wisdom of having a strategy of always going for a legislative 'half a loaf,' especially when doing so obliges you both to understate the real costs of dealing with problems and to oversell the promise and potential of your solutions." I'm often an incremental guy myself, but Craig's whole piece is worth a read.

Curiouser and Curiouser on the CLASS Act

What is the strategery here? The Hill reports, you decide. The article begins:

President Obama is against repealing the health law's long-term-care CLASS Act and might veto Republican efforts to do so, an administration official tells The Hill, despite the government's announcement Friday that the program was dead in the water.

"We do not support repeal," the official said Monday. "Repealing the CLASS Act isn't necessary or productive. What we should be doing is working together to address the long-term care challenges we face in this country."

Over the weekend, The Hill has learned, an administration official called advocates of the Community Living Assistance Services and Supports (CLASS) Act to reassure them that Obama is still committed to making the program work. That official also told advocates that widespread media reports on the program's demise were wrong, leaving advocates scratching their heads.

Monday, October 17, 2011

Gleckman and Cohn on the CLASS Act News

The big disability law news of the weekend was HHS's widely anticipated decision, late on Friday, not to move forward with implementing the CLASS Act. This is a shame, because there is a compelling need for a long-term care insurance program that (a) does not force families to impoverish themselves and go on Medicaid to receive services and (b) focuses on the provision of services in people's homes, not nursing homes. The CLASS Act, for its undoubted flaws and limitations, met those two criteria. Over at Kaiser Health News, Howard Gleckman, who has done a lot of great work on this subject, has a good post discussing possible policy alternatives that would rely on private insurance. At the New Republic, Jon Cohn has a good article making the case that the CLASS Act's problems make the case for the individual mandate in the Affordable Care Act, because mandated participation would have clearly solved the actuarial problems that led HHS to cancel the law.

Earlier this week, Judge Joseph Bataillon of the District of Nebraska issued a decision granting the motion to dismiss in National Federation of the Blind of Nebraska, Inc. v. Outlook Nebraska, Inc., 2011 WL 4802643 (D.Neb., Oct. 11, 2011). NFB-Nebraska brought the case under Title I of the ADA and Section 504 of the Rehabilitation Act to challenge what it alleged was a pattern of discrimination against blind workers at Outlook Nebraska, a Javits-Wagner-O'Day employer. Outlook moved to dismiss for lack of standing, and the court agreed. The court concluded that NFB-Nebraska lacked organizational standing because it had not sufficiently alleged that the defendant's discrimination led to frustration of its mission or diversion of its resources, and that it lacked associational standing because proof of its claim would require participation of individual NFB members. The court denied Outlook's motion for Rule 11 sanctions, however.

Perlin on International Implications of Wyatt v. Stickney

Just published: Michael L. Perlin, "Abandoned Love": The Impact of Wyatt v. Stickney on the Intersection Between International Human Rights and Domestic Mental Disability Law, 35 Law & Psychol. Rev. 121 (2011). I can't find a free copy of the final version on the internet, but a draft appears on SSRN at this link. From the introduction:

Wyatt v. Stickney is the most important institutional rights case litigated in the history of domestic mental disability law. It spawned copycat litigation in multiple federal district courts and state superior courts; it led directly to the creation of Patients' Bills of Rights in most states; and it inspired the creation of the Developmental Disabilities Assistance and Bill of Rights Act, the Mental Health Systems Act Bill of Rights, and the federally-funded Protection and Advocacy System. Its direct influence on the development of the right-to-treatment doctrine abated after the Supreme Court's disinclination, in its 1982 decision in Youngberg v. Romeo, to find that right to be constitutionally mandated, but its historic role as a beacon and inspiration has never truly faded. It has been cited (at least) an astounding 411 times in domestic law journals.

However, little has been written about the influence of Wyatt on the intersection between international human rights and mental disability law, an intersection whose importance has grown exponentially since the ratification of the United Nations' Convention on the Rights of Persons with Disabilities (CRPD). In this article, I begin a preliminary exploration of that influence, drawing four conclusions:

(1) Although Wyatt has not been cited in foreign cases, respected commentators have articulated its importance.(2) A study of important cases from international regional human rights tribunals reveals its impact, both on holdings and on court reasoning. (3) Relevant sections of the CRPD have been based on Wyatt's holdings and the institutional standards mandated by subsequent Wyatt orders. (4) It is not much of a reach to predict that, in another 40 years, Wyatt's influence on international human rights law will be seen as profound as (or as more profound than) its influence on domestic law.

Harkins to Equip Cinemas for Deaf, Blind to Settle Arizona Suit

The state’s largest movie chain will outfit virtually off its theaters with equipment designed to help those with hearing and sight problems, including those who are totally deaf or blind.

In a consent decree filed late Thursday in U.S. District Court, Michael Bowers, president of Harkins Theaters, agreed to install closed caption and descriptive video systems in half of its 25 theaters it operates in Arizona by this coming June 15. And the balance of its theaters will have the equipment by Jan 15, 2013.

DOJ Supports Disability Advocates in Taxi Accessibility Lawsuit

For Christopher Noel, catching a cab is like finding a needle in a haystack. He uses a wheelchair, and of the city’s 13,000 taxis, only about 230, or less than 2-percent, are accessible.

“How many of them are being used at the moment? And when will I see the next one that’s coming by that’s fully accessible? If we had a fully accessible fleet, no one would have that problem,” said Noel.

Noel is one of the plaintiffs in a lawsuit that says the city is in violation of the Americans with Disabilities Act. On Thursday, the Department of Justice agreed and filed papers to back the lawsuit.

Seligmann on Rowley

Also on SSRN, Terry Jean Seligmann has posted her paperSliding Doors: The Rowley Decision, Interpretation of Special Education Law, and What Might Have Been, forthcoming in the Journal of Law and Education. The abstract:

When the decision in Board of Education v. Rowley was announced in 1982, advocates for special education viewed it as a defeat for students with disabilities. But in many respects the Rowley decision supported a robust and forceful mandate at the federal level to provide special education at the state and local level. It found the statute sufficiently clear to bind the states to the standards as the Court saw them. It enshrined the individual determination of needs and services and the parent's enforcement role. And the Court refused, both in Rowley and in later decisions, to allow cost to determine appropriateness of services. This reflection, written as part of a symposium issue commemorating the thirtieth anniversary of the Rowley decision, suggests that as to each of these issues, a differently disposed Court could have taken a different tack. Had it done so, special education would not look today as it does, and advocates would have far more to lament. This essay "slides the doors" as to each of these aspects of the Rowley decision to consider how things might have been different had the Court resolved them another way. Because acknowledged shifts in the Court suggest that the pendulum has swung away from enforcement of individual entitlements in the intervening years, I suggest that Rowley deserves celebrating on its own merits for these critical elements of a strong special education law.

Huss on Canines on Campus

New (at least to me) on SSRN: Animal law scholar Rebecca Huss has posted her paperCanines on Campus: Companion Animals at Postsecondary Education Institutions, forthcoming in the Missouri Law Review. The abstract:

This Article focuses on the issues that arise when students wish to attend a postsecondary institution accompanied by an animal. The Article begins by analyzing the federal law applicable to students bringing service and assistance animals to campus. The use of animal-assisted activities on campus is also explored. The Article continues with an examination of policies allowing students to have companion animals in campus housing. Concerns raised by administrators about allowing animals on campus are then considered. Finally, the Article sets forth the measures an educational institution should implement to ensure compliance with the law and proposes actions that can be taken to protect humans and safeguard the companion animals on campus.

Cuomo Says He Will Reform Agencies Serving Disabled

Gov. Andrew M. Cuomo, saying he was startled by problems with the handling of abuse and neglect allegations at state facilities, on Wednesday vowed reforms at six agencies that provide residential care for the disabled, the elderly, children and the mentally ill.

Speaking to reporters as he met with his cabinet, Mr. Cuomo and his staff said a review of the agencies had found myriad clashing procedures — differing definitions of abuse, varying directives about when to call law enforcement, inconsistent standards of proof and sometimes no standard of proof at all.

“Some of those findings are startling to me,” Mr. Cuomo said. “Obviously they are troubling.”

Council Committee Rejects Preferences for Disabled Job Applicants

See this interesting article from the Rapid City (SD) Journal by that title. An excerpt, in which you can see we're not really talking about preferences:

A city job policy intended to provide opportunities to people with disabilities failed to garner the support of the Legal & Finance Committee on Wednesday, amid concerns that it would be no different than affirmative action.

Aldermen voted 3-2 against the proposed disability preference policy, which would guarantee job interviews to people with significant disabilities as long as they also met the minimum requirements for the city position they were applying for. The Rapid City Council will reconsider the policy at its meeting Monday.

“I’m a firm believer in any help that I can provide, but I’m also a firm believer in equality,” Ward 3 Alderman Dave Davis said. “This one smacks of affirmative action, not equality.”

Atlanta Journal-Constitution on Georgia-US Olmstead Agreement

Georgia has made significant strides in moving the developmentally disabled and mentally ill out of state mental hospitals and into community settings -- despite notable gaps in care, a new report shows.

No longer admitting the developmentally disabled into state institutions marks a “landmark accomplishment” for Georgia, according to the report by Elizabeth Jones, an independent reviewer appointed to track the progress of a five-year agreement between the state and U.S. Department of Justice.

Over the past eight months, the state's efforts include placing 192 developmentally disabled people -- who have lifelong mental or physical impairments that often prevent them from living on their own -- into homes with no more than four people. Under the agreement, the state also aims to provide community-based support to 9,000 mentally ill individuals. Overall, it plans to spend $72 million in the first two years alone.

The Power of Universal Design at the Ed Roberts Campus

$4.5 Million Verdict for Parents of Child Born with No Arms, One Leg

Via Overlawyered, I see this article from the Palm Beach Post. Some excerpts:

After nearly nine hours of deliberation over two days, a Palm Beach County jury today awarded a West Palm Beach couple $4.5 million to care for their son who was born with no arms and one leg.

* * *

During a roughly two-week-long trial that ended Wednesday, Mejia and Santana claimed they would have never have brought Bryan into the world had they known about his horrific disabilities. Had Morel and technicians at OB/GYN Specialists of the Palm Beaches and Perinatal Specialists of the Palm Beaches properly administered two ultrasounds and seen he was missing three limbs, the West Palm Beach couple said they would have terminated the pregnancy.

Instead, they went to the hospital in October 2008, believing they would have a healthy son.
"They went from the heights of joyous expectations to the depths of despair," their attorney Robert Bergin told the jury during closing arguments Wednesday.

* * *

"Ana and Rodolfo Santana know their mental anguish and their emotions are not important," Bergin said. "The only thing that will help make up for their mental anguish is to know Bryan's life plan is fully funded."

The plan, that would cost $9 million, will cover prostheses, wheelchairs, operations, attendants and other needs he will have during his estimated 70-year life, Bergin said. "It will give piece of mind to these people that no matter what happens to them, their son will be all right," said Jason Weisser, who also represents the couple.

This case highlights why wrongful birth actions are so problematic from a disability rights perspective. Having only one limb is not "horrific" (a word the article uses twice to describe Bryan S.'s disabilities). Certainly, a person with only one limb needs accommodations, assistive devices, and perhaps personal assistance, and our society doesn't pay for those things very well. Some comes through private health insurance, some through public programs such as Medicaid, and some, for school-aged kids, through public schools, but there are far too many gaps. I empathize with the parents' need to get money to pay for these things (though I'm not sure where the $4.5 or $9 million figures come from). But a system that requires parents who wish to finance needed accommodations and assistance to convince a jury that they would not have had their child had they known that he would have had such "horrific" disabilities seems to me terrible for people with disabilities.

Plan to Relax Special Education Standards Worries Advocates

Disability advocates are calling out a group of Republican senators for proposing changes to federal education law that they say would lower expectations for students with disabilities.

In a letter sent to six Republican senators last week, more than three dozen disability advocacy organizations asked the lawmakers to reconsider their proposal to reauthorize the nation’s primary education law known as No Child Left Behind.

The senators introduced a bill in September that would allow students with “the most significant cognitive disabilities” to be held to different academic standards and take alternate achievement tests. The bill does not specify any limit on the number of students who could take the modified exams.

NFB, Penn State Resolve Technology Access Complaint

Dan Goldstein passes along this press release announcing the settlement of the National Federation of the Blind's claim challenging inaccessible technology (including inaccessible websites) at Penn State University. It begins:

Penn State has agreed to continue implementing a strategy to make all electronic and information technology systems used on its campuses fully accessible to blind students, faculty, and staff. The information technology systems covered include course management systems, Web sites, classroom technology, library resources, banking services, and more. University Spokesman Lisa Powers said that Penn State strives to maintain strong academic leadership and has a long record of providing equal access to educational information and services for all students, faculty, and staff.

Dr. Marc Maurer, President of the National Federation of the Blind, said: “Universities must commit to making sure all of the technology that they use is accessible to blind students, or else the blind will be left behind in education and denied opportunity. We are pleased that Penn State, one of the largest and most recognized public universities in the country, has agreed to take additional steps to create an environment of equality in which blind students can pursue their educational and career aspirations without unnecessary barriers. The National Federation of the Blind hopes and believes that the steps that Penn State is taking will set an example for colleges and universities throughout the nation.”

Monday, October 10, 2011

FCC Moves to Implement Disability-Access Regulations

The Federal Communications Commission will give companies two years to comply with new regulations to make advanced communications services accessible to people with disabilities.

"As our reliance on technological innovations driven by broadband continues to enhance the way we communicate, this Order will ensure that people with disabilities are not left behind; that they can compete for jobs, participate in online commerce, and engage in civic dialogue using the advanced communications technologies of today — and the technologies of tomorrow that haven’t even been invented yet," FCC Chairman Julius Genachowski said in a statement.

Monitor's Report in USDOJ/Georgia Olmstead Agreement

Andy Miller at Georgia Health News has this article on Elizabeth Jones's first annual monitor's report assessing Georgia's compliance with its landmark Olmstead agreement with the United States. The first few grafs:

The state has made significant progress toward meeting the goals of an agreement with the U.S. Department of Justice to improve services for people with mental illness and developmental disabilities, an independent report says.

But the Oct. 5 report, by independent reviewer Elizabeth Jones, is critical of some community services and help provided to people with disabilities. It cites health care problems, a lack of day programs, and unsafe medication practices.

Jones was appointed to track the progress of the state in meeting its obligations under the five-year landmark agreement with the Justice Department. She will give such reports annually.

The state “has demonstrated good faith and commitment in its implementation of the Year One obligations,’’ the report says.

Under the settlement, which was reached last October, Georgia agreed to establish community services, including supported housing, for about 9,000 people with mental illness, and to create community support and crisis intervention teams to help people with developmental disabilities and mental illness avoid hospitalization.

Introduction of the Fair Wages for Workers with Disabilities Act

Last week, Reps. Cliff Stearns and Tim Bishop introduced H.R. 3086, the Fair Wages for Workers with Disabilities Act. This bill would, over three years, phase out Section 14(c) of the Fair Labor Standards Act, which permits employers to pay less than minimum wage to workers with disabilities in some circumstances. The National Federation of the Blind has this press release endorsing the bill, and they also link to a report I wrote for NFB on the topic. See also these comments from former New York Governor David Paterson endorsing the bill. This is a highly controversial topic within the disability community, and one on which I expect we'll hear a lot more.